) Devi Marine Food Exports Ltd vs Commissioner Of Customs (Seaport)

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CHENNAI

Appeal Nos.C/163/2006 & C/233/2006

[Arising out of Order-in-Appeal No.C.Cus.120/06 dt. 21.2.2006 & OIA C.Cus.No.249/2006 dt. 31.3.2006 both passed by the Commissioner of Customs (Appeals), Chennai]

1) Devi Marine Food Exports Ltd. 2) Devi Sea Foods Ltd. Appellant

Versus

Commissioner of Customs (Seaport), Chennai Respondent

Appearance:

Shri R. Asokan, Advocate (Sl.No.1) Ms. Sridevi, Advocate (Sl.No.2) For the Appellant

Ms. Indira Sisupal, AC (AR) For the Respondent

CORAM :

Honble Shri D.N. Panda, Judicial Member Honble Shri R. Periasami, Technical Member

Date of Hearing/Decision : 21.9.2015

FINAL ORDER No.41269-41270/2015

Per D.N. Panda

Appeal No.C/163/2006

Ld. counsel submits that the order of the Commissioner (Appeals) passed on 21.2.2006 suffers from legal infirmities for the following reasons :-

(1) When Revenue disputed that "shrimp" is "fish" that was settled by the Tribunal in favour of assessee in Final Order No.951-988/2005 dt. 8.7.2005 holding that in the absence of any intention of legislature to the contrary "shrimp" cannot be treated as "fish" by any stretch of imagination. There was no definition of "fish" in the Schedule appearing under Agricultural Produce CESS Act, 1940. This view of the Tribunal was upheld by the Hon'ble High Court of Madras in C.M.A.No.212/2007 and others disposed by a judgement dt. 4.7.2008 as reported in 2008 (230) ELT 225 (Mad.) By this judgement, there shall not be liability of the appellant at all whereas the department has in sequence held against the appellant and fastened with liability of Cess.

(2) The above judgement of the Hon'ble High Court of Madras was under challenge by Revenue before the Supreme Court in S.L.P. (C) No.16836 to 16874/2009. That S.L.P. is still pending thereat. Therefore, when the appellant succeeded before Tribunal and successively before Hon'ble High Court, refund of Cess should have been granted without being denied by learned Commissioner (Appeals).

(3) The Commissioner (Appeals) failed to appreciate that when the law is laid down by Hon'ble High Court of Madras in the above judgement, there is no necessity of denying the refund claim arose out of 513 shipping bills of the appellant occasioning export of shrimp which is not leviable to Cess.

(4) When no copies of shipping bills were made available by customs to appellant, it was prevented to produce the original shipping bill to learned Commissioner (Appeals). Prevention to produce the same was for reason beyond its control. That shall not handicap the appellant to refund. The first shipping bill copy available was submitted to DGFT for claim of DEPB. Second copy was submitted to the bank for realization of foreign exchange and the third copy lies with customs. There was no copy issued to appellant. Without appreciating such reasons and the law declared by the Hon'ble High Court of Madras, the Commissioner (Appeals) went by the judgement of the Apex court in the case of Priya Blue Industries Vs CC (Prev.) Mumbai  2004 (172) ELT 145 (SC) and denied refund to appellant. According to him, when the refund claim arises in respect of shipping bill claim should have been made against each such bill duly. But when law was settled holding no levy of Cess, State cannot be enriched at the cost of the appellant without refund of the cess realised.

2. Ld. counsel explained the history of the case stating that in the year 1999 when it suffered against a shipping bill of that year instead of approaching to the executive machinery it went in writ petition to the Hon'ble High Court of Madras in W.P.No.20123/1998 which was disposed on 20.9.2003. The Hon'ble High Court while disposing the writ petition, directed the appellant to approach the executive machinery to pursue its claim. The lower appellate authority allowed the claim. But Revenue being aggrieved came to the Tribunal.

3. The Tribunal by its Final Order No.951-988/2005 disposing a batch of appeals on 8.7.2005 held that 'shrimps' cannot be equated with 'fish'. Fish being exigible to levy under Section 3 of the aforesaid Cess Act, shrimp is immune from that levy of CESS under that law. But being aggrieved by that order of the Tribunal, Revenue went to Hon'ble High Court of Madras in the C.M.A.No.212/2007 and others. The Hon'ble High Court in the Judgment reported in 2008 (230) ELT 225 (Mad.) upheld the decision of the Tribunal holding that fish does not include shrimp. Therefore, no CESS can be levied on the shrimps exported. But still Revenue being aggrieved has challenged the above reported judgement of the High Court of Madras before apex court. That is pending.

4. It was further submitted on behalf of the appellant that when the question of law was under test by Hon'ble High Court, the question of time bar does not apply and all the 513 shipping bills which has common cause of levy, does not disentitle appellant to refund arising out of those shipping bills in respect of which CESS is not leviable on shrimp exported.

5. Learned counsel further argued that refund was not claimed by appellant against each shipping bill for the reason that the matter was being agitated before High Court during pendency of writ petition No.20123/98. The refund claim pertaining to 513 shipping bills arose during the year 2000-01 to 2004-05. The decision of the High Court in the above writ petition came on 20.9.2003. By that time, appellant was under bonafide belief that its entire claim for the shipment of the prawn/shrimps made during the period 2000-01 to 2004-05 shall not be exigible to CESS. Therefore after decision in writ petition, refund in respect of 513 shipping bills was claimed.

6. On the aforesaid premise, it is submission of the counsel that order of the learned Commissioner (Appeals) is unsustainable even following the apex court judgement in the case of Priya Blue Industries (supra) when appellant had no scope to know what was the law on the subject.

7. Revenue on the other hand says that it has gone in appeal before the apex court against judgement of Hon'ble High Court of Madras as reported aforesaid. According to Revenue, time bar is prescribed for submitting the refund claim. Failure to comply to law relating to limitation debars the refund claim for consideration. Secondly, it is submitted on behalf of the Department, that appellant was well aware that its writ petition was disposed and it was directed to approach executive authority. At least it should have come forward immediately to submit its claim. But that was not done. Further, when there was no original documents before both the authorities below it was not practically possible on the part of the department to consider the claim of the appellant.

8. Heard both sides and perused the records. There is a mode of claim of refund prescribed by law. We do appreciate the difficulties of the appellant as to prevention to produce original document in support of claim of refund. But we fail to understand why appellant did not keep its refund claim alive before the adjudicating authority as and when shipment was made when as early as in 1999 it was aware that there arose liability towards Cess under the above Act till that was declared by the High Court of Madras in the judgement reported in 2008 (238) ELT 225 (Mad.) as not leviable. Therefore, it can be said that all on a sudden 513 shipping bills shall not entitle the appellant to refund which is barred by limitation. Therefore, on that count, appellant fails to succeed.

9. We notice that appellant has not brought to the notice of Hon'ble High Court of Madras even on the date of decision in W.P.No.20123/1998 as to its successive claim by 513 shipping bills. In such circumstance, appellant has no claim to get the refund against all these shipping bills. However, we appreciate difficulty of appellant as to filing of original documents for the reason advanced by appellant and no leviability of Cess. But we do not consider it proper to hold contrary to the bar of limitation prescribed by law relating to refund. Accordingly, appeal is dismissed.

C/233/2006

10. In view of the reasoning and decision in Appeal No.C/163/2006, this appeal is also dismissed having similar cause of action.

(Dictated and pronounced in open court)

(R. PERIASAMI) (D.N. PANDA) TECHNICAL MEMBER JUDICIAL MEMBER

gs 6